CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 12 septembre 2024

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AND OTHERS v. HUNGARY (Application no. 13899/19)         JUDGMENT   STRASBOURG 12 September 2024   This judgment is final but it may be subject to editorial revision.   In the case of Z.L. and Others v. Hungary, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström , President ,   Lado Chanturia,   Kateřina Šimáčková , judges , and Sophie Piquet, Acting Deputy Section Registrar, Having regard to: the application (no.   13899/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 13 March 2019 by five Afghan nationals (“the applicants”) who were represented by Ms Pohárnok, a lawyer practising in Budapest; the decision to give notice to the Hungarian Government (“the Government”), represented by Mr Z. Tallódi, of the Ministry of Justice, of the complaints under Article 5 §§ 1 and 4 of the Convention concerning the applicants’ detention in the transit zone, under Articles 3 and 8 of the Convention, taken alone and in conjunction with Article 13, concerning the conditions of their detention and the lack of an effective remedy in this regard and to declare inadmissible the remainder of the application; the decision not to have the applicants’ names disclosed; the decision to give priority to the application (Rule 41 of the Rules of Court); the parties’ observations; Having deliberated in private on 4 July 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The first applicant is a mother and the second to fifth applicants are her children. The second applicant was twenty years old, while the other children were minors at the relevant time (see the appended table for details). 2.     They left Iran after a couple of years, and travelled through Türkiye, Bulgaria and Serbia. They arrived in Hungary on 10 December 2018 and applied for asylum in the Röszke transit zone. On the same day, the Immigration and Asylum Office (IAO) issued a ruling ordering the applicants’ “designated place of stay” to be in the transit zone. 3.     On 11 February 2019 the applicants’ asylum claims were rejected on the basis that Serbia was a safe transit country where they could have applied for asylum. The IAO ordered their expulsion to Serbia, by way of deportation. 4.     Their request for judicial review against the decision was rejected on 7   March 2019. 5.     As their expulsion became final, the IAO initiated an alien policing procedure. By the authority’s decision of 12 March 2019 the applicants’ compulsory place of stay pending the procedure remained the Röszke transit zone. 6.     As Serbia refused to readmit the applicants, on 26 March 2019 the IAO modified the destination country of their expulsion to Afghanistan. 7.     On 16 May 2019, the applicants lodged a new asylum application. Following two remittals, the IAO rejected the applicants’ asylum request on 8 October 2020 which decision became final. 8.     Initially, the applicants stayed in the family sector of the transit zone. On 12 March 2019 they were moved to the alien policing sector. 9.     As of the afternoon of 12 March the IAO did not provide the two adult applicants with food. The authorities gave the first and second applicants food on l6 March 2019 in response to the Court’s decision to grant the applicants’ request for interim measure to that effect under Rule 39 of the Rules of the Court. 10.     The applicants had remained in the transit zone until 21   May 2020, when it was closed down. They were transferred to an open facility from where they left to an unknown destination. They currently reside in Vienna, Austria. 11.     Besides the material conditions and the food deprivation, the applicants complained about the length of their confinement and the circumstances of the medical care provided for the third applicant, in particular the police escort to and presence during his medical examinations and lack of interpretation during them. 12.     In their application, they relied on Article 5 §§   1 and 4 of the Convention complaining about their detention in the transit zone. Moreover, relying on Articles 3 and 8 of the Convention, taken alone and in conjunction with Article 13, they complained about the conditions in the transit zone, the violation of their private and/or family life in such conditions and the lack of an effective remedy in this regard. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 13.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 14.     The general principles concerning the confinement and living conditions of asylum-seekers have been summarised in Khlaifia and Others v.   Italy ([GC], no. 16483/12, §§ 158-69, 15 December 2016) and with respect to the confinement of minors in R.R. and Others (cited above, §   49), S.F.   and   Others v. Bulgaria , (no. 8138/16, §§ 78-83, 7 December 2017) and M.H. and Others v   Croatia , (nos. 15670/18 and 43115/18, §§   183 ‑ 186, 18   November 2021). 15.     As regards the third, fourth and fifth applicants, they were seventeen, fifteen and thirteen years old at the relevant time. It is recalled that in R.R   and   Others the Court, emphasising the primary significance of the passage of time for the application of Article 3 in situations such as the present one, found a violation of this provision on account of the conditions to which the applicants, who were seven months, six years and seven years old, were subjected during their almost four-month-long stay in the Röszke transit zone (see R.R. and Others , cited above, §§ 58-60 and 63‑65). Even though the minor applicants in the present case were older than the children in R.R. and Others , considering their significantly longer, seventeen-month confinement in the Röszke transit zone, the Court sees no reasons to find otherwise in their case (see also M.H. and Others , cited above, § 201 and compare M.B.K. and Others v. Hungary [Committee], no. 73860/17, §   6, 24   February 2022). 16.     As regards the first and second applicants, the Court notes that they were given no food by the Hungarian authorities during four days in total while they were in the alien policing sector of the transit zone. The Government did not dispute the applicants’ allegations in this regard, but argued that they had been allowed to obtain food at their own expense or from NGOs operating in the transit zone. In the case of R.R. and Others the Court found a violation of Article 3 with respect to the applicant father who had not been provided with food by the authorities, noting that the Government’s arguments (similar to the ones submitted in the present case) were unable to change the fact that the domestic authorities had not provided the applicant with food despite the state of dependency in which he had lived in the transit zone (cited above, § 57). Similarly, in W.O. and Others v.   Hungary (no.   36896/18, § 13, 25 August 2022) and O.Q. v. Hungary ([Committee], no.   53528/19, § 13, 5   October 2023) the Court found a violation of Article   3 on account of food deprivation for six days. In the present case the Court considers that by refusing to give the first and second applicants food, the authorities failed to have due regard to the state of dependency in which they lived during this period (see R.R. and Others , cited above, § 57; W.O. and Others, cited above, § 13; and O.Q., cited above, § 13), and subjected them to treatment exceeding the threshold of severity required to engage Article   3 of the Convention ( R.R.   and Others , cited above, §   57). 17.     In light of the above, the Court does not find it necessary to examine the applicants’ other complaints (in particular the protractedness of the adult applicants’ confinement and the circumstances of the third applicant’s medical examinations) which might also be relevant for the assessment under Article   3. 18.     There has accordingly been a violation of Article 3 of the Convention with respect to all applicants. ALLEGED VIOLATION of Article 5 §§ 1 and 4 of the Convention 19.     The Government argued that the applicants’ stay in the transit zone during the asylum proceedings and the alien policing procedure had not constituted deprivation of liberty. 20.     Concerning the applicants’ placement in the transit zone during the asylum proceedings, the Court notes that their complaint that they were confined to the transit zone in violation of Article 5 §§ 1 and 4 of the Convention is similar to the one examined in the case R.R. and Others. In that case the Court found that the applicants’ stay for almost four months in the transit zone amounted to a de   facto deprivation of liberty (cited above, §§   74 ‑ 83). The Court, having regard to all circumstances, does not consider that the present case warrants a different conclusion. 21 .     Concerning the applicants’ placement in the transit zone during the alien policing procedure, the Court notes that it was based on sections 62(1)   (f) and 62(3a) of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (“the Immigration Act”). According to section 62(1) (f), the immigration authority can order a third-country national to reside at a specific place when that person has been ordered to be expelled from the country and has neither financial resources nor accommodation. Section 62(3a) allows for the designation of one of the transit zones as such a specific place of stay during the crisis situation related to mass migration. Thus, the applicants’ transit zone placement during the alien policing procedure served a purpose, and was based on a legal provision, different from those of their transit zone placement during the asylum proceedings. As regards the applicability of Article 5 of the Convention, their detention was nevertheless similar in the relevant aspects to the asylum detention of the applicants in R.R. and Other s. Having regard to the fact that the applicants were escorted to the alien policing sector by the police officers in enforcement of an expulsion decision; the lack of any domestic legal provisions fixing the maximum duration of their confinement; the excessive duration of their stay (seventeen months) and the conditions in which they were held, the Court considers that – irrespective of the classification in domestic law – the applicants were deprived of their liberty within the meaning of Article   5 in the transit zone in the alien policing sector (see R.R. and Others, ibid., §   83). Article   5 §   1 is therefore applicable. 22.     This part of the application, which is not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention, nor inadmissible on any other grounds, must therefore be declared admissible. 23.     As regards the applicants’ placement in the transit zone during the asylum proceedings the Court concludes, having examined all the material before it, that the above complaints disclose a violation of Article 5 §§   1 and   4 of the Convention in the light of its findings in R.R. and Others (ibid., §§   87 ‑ 92 and 97-99). 24.     As regards the applicants’ placement in the transit zone during the alien policing procedure, even though the placement order under sections 62(1)   (f) and 62(3a) of the Immigration Act resulted in their de facto detention (see paragraph 21 above), these provisions did not provide for sufficient guarantees against arbitrariness. By the designation of a transit zone as compulsory place of stay, the applicants’ de facto detention could be brought about without a formal and reasoned decision on their detention, and in the absence of any provision setting a limit to the length of such placement, for an indeterminate time ( see Louled Massoud v. Malta , no. 24340/08, §   71, 27   July 2010; and with regards to transit zone detention during the asylum proceedings see R.R. and Others , cited above, §§ 88-90). Furthermore, as to the judicial review of the placement decision, the Court observes that only a failure by the ordering authority to comply with its obligation to provide information to the person about his or her rights and obligations could be challenged before the courts, but not the substance of the decision. Namely, the domestic law did not provide the applicants with the possibility to contest the lawfulness and length of their detention (see Louled Massoud, cited above, §   71). 25.     In view of the above, the Court finds that the national law which served as the basis for the applicants’ detention did not meet the standard of “lawfulness” set by the Convention and did not provide the applicants with effective safeguards against arbitrariness. 26.     There has accordingly been a violation of Article 5 §§   1 and   4 of the Convention. OTHER COMPLAINTS 27.     The applicants also complained under Article   8 and Article   13 read in conjunction with Articles   3 and   8 of the Convention about the conditions of detention and the lack of an effective remedy in this regard. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], no.   47848/08, §   156, ECHR   2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.     The applicants jointly claimed 57,000   euros (EUR) in respect of non ‑ pecuniary damage and EUR 6,000 in respect of costs and expenses incurred before the Court. 29.     The Government considered the applicants’ claim to be excessive. 30.     Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court jointly awards the applicants EUR   12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to them. 31.     Having regard to the documents in its possession, the Court considers it reasonable to award the applicants, jointly, EUR   1,500 covering costs for the proceedings before the Court, plus any tax that may be chargeable to them. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaints under Article 3 and Article 5 §§ 1 and 4 of the Convention admissible; Holds that there has been a violation of Article 3 of the Convention; Holds that there has been a violation of Article 5 §§ 1 and 4 of the Convention; Holds that there is no need to examine separately the admissibility and merits of the remaining complaints; Holds (a)   that the respondent State is to pay the applicants, within three months, the following amounts , to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 12 September 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Sophie Piquet   Stéphanie Mourou-Vikström   Acting Deputy Registrar   President     APPENDIX List of applicants: No. Applicant’s Name Year of birth Nationality Place of residence 1. Z.L. 1969 Afghan Austria 2. J.R. 1999 Afghan Austria 3. A.R. 2001 Afghan Austria 4. H.R. 2003 Afghan Austria 5. M.R. 2006 Afghan Austria